No synodality without freedom of speech – canon law must acknowledge the human rights of church members
By Dr. Mary McAleese
This text is the opening keynote address by Dr. Mary McAleese, delivered at the Root and Branch Synod in Bristol on Friday September 10th and published on the website of the initiative: https://www.rootandbranchsynod.org/synod-scripts
You put aside the commandment of God to cling to human traditions.
– Mark 7:8
It was not so long ago that the big S- word in the Catholic Church was Scandal. It enveloped the Church in an ecclesial winter. Today another big S-word – Synodality – promises an “ecclesial springtime” to quote recent words of Cardinal Mario Grech Secretary General of the Synod of Bishops[i]. Many faithful would like to see that Springtime but their hopes are tempered by the belief that the Church is at a critical crossroads in its history and if it fails to choose the right path it risks an enduring permafrost. Pope Francis seemed to understand this predicament and the surge tide of distrust of a culpable episcopacy when shortly after his election he said that the future lay with developing a synodal Church at every level, which would be a listening Church, whose members, would walk and talk together with freedom of speech and where what affects all would be discussed by all as was the case in the early Church. Those words brought optimism and a new energy seemed to break through the pervasive demoralisation.
In good faith responses to Pope Francis’ words, some diocesan synods have been held or are planned and national episcopal synodal processes are currently underway in Germany, Australia, South America, Italy and Ireland and there is this uniquely lay-led Root and Branch Synod which has no geographical boundaries. In addition there is the surprise initiative of Francis who announced that in October of this year a synodal process will commence throughout the universal Church which will culminate in a Synod of Bishops in Rome in 2023. It will have the theme: “For a synodal Church: communion, participation, and mission”. It has been dubbed – the Synod on Synodality. Pope Francis and the Synod Office have set out the terms on which we Church members will participate. Now we set out ours for theirs are missing important basics.
I want to make the case here that while there is real value in developing a new culture of synodality in the Church, synodality will only work, in fact the future Church will only work, if it is firmly set in a context where there is unequivocal acceptance that Church members are entitled within the Church and all its laws and processes, including synods, to the inalienable human rights set out in The Universal Declaration of Human Rights of 1948. Those rights include the equality of men and women, and their intellectual rights to freedom of expression, speech, thought, opinion, belief, conscience and religion, including the right to change religion. Church canon law currently imposes limits and restrictions on all those rights. Regrettably it is already clear that in Francis’ notion of synodality these things are not likely to be up for discussion. Yet they urgently need to be.
Synodality is a concept which is not referred to much less defined in any document of Vatican II[ii] or in the 1983 Code of Canon Law. Pope Francis admitted it is easier to name than explain[iii] and The International Theological Commission pointed out in 2018 that the very word “synodality”: “is a linguistic novelty which needs careful theological clarification.”[iv] There has been little theological clarification but there has been a welter of hastily constructed legal clarification, including from Pope Francis and this week we got a rambling Preparatory document from the Office of the Synod of Bishops which while telling us “that we are at a crucial transition in the life of the Church, which cannot be ignored”, remarkably it ignored fundamental questions about your rights and mine as Church members which are at the heart of this” crucial transition”.
Without a change of course there is little likelihood the forthcoming Synod on Synodality will deliver a measurable ecclesial thaw. Greater hope lies in this lay-led Synod and the German Synod both of which offer a progressive model of synodality based on principles which on current form will be absent from the Synod of Bishops Synod on Synodality, namely equality of all Church members, freedom of speech and agendas that are fully open to discussion of contentious issues. We have to hope and pray that enough faithful in every diocese including laity, religious, priests and bishops will find the courage to insist that the recognition in Church law of the equality and intellectual freedom of all Church members must be a priority in the national episcopal reports that will go to Rome for the 2023 Synod. It will be the most important reset button the Church has ever hit.
Despite the Universal Declaration of Human Rights the Church has continued to teach that the magisterium has the unchallengeable right to restrict your rights and mine as Church members. It says it can legitimately do so because of personal promises we made at Baptism which imposed on us compulsory life-long obligations of Church membership.
The obligations include obedience to the magisterium, accepting magisterial teachings we find unpalatable and refraining from dissent in order to maintain communion. In other words by our baptismal promises we are deemed to have accepted the right of the magisterium to impose limitations on our freedom of expression. opinion, conscience, belief, religion and right to change religion.
The Second Vatican Council disgracefully dissembled on this issue in its declaration on Religious Freedom, “Dignitatis Humanae”, which recognised only that those outside the Church had the right not to be coerced into embracing the faith. In small weasel print it ignored the Universal Declaration of Human Rights and continued the magisterial claim that all those baptised into the Catholic Church are bound by Baptism to fixed obligations of membership from which they cannot freely escape.
In my view this understanding of magisterial control over Church members is no longer sustainable. For generations it has been based on unchallenged presumptions which have shaped and protected a dominant church culture of celibate male hierarchicalism and clericalism, which silenced and scorned the voices of the faithful especially the laity, especially women and especially those who dissent both lay and clerical. It has resulted in a dysfunctional top-heavy edifice with unhealthy repression of internal discussion; it has facilitated unaccountable and untrustworthy episcopal management by company men rather than Christ’s men and led to the long shelf-life of unenlightened and damaging teachings and practices to the detriment not just of the Church but of humanity – for the Catholic Church is a global key influencer with a membership of one sixth of the world’s population operating in five continents. It should be leading by example practising equality and freedom of expression as gifts from God, but instead it freezes its own progress and that of entire cultures and genders by clinging to an archaic imperial model of control. That model purports to make each of us permanently indentured not to the great liberating commandment of Christ to love one another but to the authoritarianism of the magisterium no matter how wrongheaded, dangerous or unchristian and it has been all those things over the course of Church history including the present-day.
I want to argue here that we have arrived at a watershed where before we can go forward as a Church we must reform these long overlooked foundational presumptions which dare to limit our fundamental God-given faculties and freedoms to make up our own minds, speak with our own voices, and inform our own consciences. What God has given the Church has no right to take away. Yet it does with its appeal to the binding nature of obligations based on baptismal promises. It is time for us to make the case that fictitious baptismal promises made by non-sentient babies as is the case for eighty four percent of Church members baptised as infants and even actual promises made by adult catechumens can no longer be relied on to justify depriving Church members of their inalienable human rights to make up their own minds, offer their own opinions, dissent from and challenge the magisterium as well as change their minds completely about Church membership.
Let me be clear: infant baptism although normative in the Church, in itself is not the problem. What is problematic here is the failure of the magisterium to separate out the divine from the man-made consequences of Baptism. It is these latter that are problematic. The divine theological effects of baptism are the free gifts of divine grace which open the pathway to salvation, free us from original sin and incorporate us into the body of Christ. That divine salvific grace enters our souls as a leaven which is unceasingly available to us and invites us into a relationship with Christ. It does not command or force us. It invites. We are free to accept or reject again and again.
The man-made consequences of Baptism found in canon law are not gratuitous and they are certainly not of divine origin. They are bolted on to the sacrament of Baptism to compel enrolment as life members of the Catholic Church and to impose a once and for all acceptance of the extensive obligations of membership, which the vast majority of us lack the capacity to evaluate until it is too late. These obligations hold us forever in a relationship of subservience and submission not to Christ but to the sacred pastors. Since their power over us stems from promises the vast majority of us never made it is legitimate to ask did anyone have the right to make them on our behalf? That sounds to me like an appropriate question for a Synod where what affects all is discussed by all.
I still remember with horror when our parish priest reprimanded my mother in front of her family, for having a hysterectomy without his permission while she was still of child-bearing age. She was thirty nine, had had eleven pregnancies, nine live children aged from eighteen to newborn, and was in life-threatening danger from haemorrhage. Then it was a case of “Everything about us – without us”. It still is and sadly Pope Francis’ vision of synodality will not change that on current plans unless voices from this synod, from Germany and elsewhere interrupt what is being planned about us, without us even as we speak. Let us take a closer look.
Those who have followed Pope Francis’ last four Synods will be familiar with the cautious choreography of the Synodal process about to be launched next month. We are told there will be three phases. The first is a so-called diocesan-consultative phase which will reach out to all the faithful including the one point three billion laity seeking their views through responses to questionnaires circulated at diocesan level. In reality this will be a first phase in name only for it will have been preceded by a detailed design and drafting process carried out by officials in the office of the Synod of Bishops. Already their Preparatory document published this week shows signs that it has been meticulously designed to forestall feedback from the faithful on contested magisterial teaching, or neglected matters like recognition of the equality and intellectual human rights of Church members. After laborious local consultation on the “ten thematic nuclei” already identified by the central Synod Office in Rome, phase two, the discernment-continental phase begins. It involves only the bishops of the episcopal conferences. Having gathered the responses to the questionnaires they will, in private and with complete editorial control, distil them into reports which will be passed on to the Synod office in Rome. There they will again be filtered by Synodal officials into the working documents of the third phase, that is the deliberation or conclusive phase. This final and decisive phase will take place in Rome at the formal gathering of the Synod of Bishops in October 2023.
By then the alluring language of “journeying together” will be long redundant for the laity disappear from the journey at the end of Phase One and a process of secret sanitising takes over. From then on only the bishops journey together. Past practice indicates that with a few noble exceptions episcopal conferences will not openly publish their full reports. Past practice has been that Synods of Bishops are held in camera with only a tiny handful of invited laity in attendance and among them a risible, token female presence. You can be sure the latter will be preposterously talked up by Vatican officials as if we cannot do simple maths. The Synod will likely end by agreeing a papally approved Synod report or there may be a post-synod papal exhortation which will inform, for good or ill, the shape of church synodality for decades to come.
Pope Francis claims this absurd process by some strange alchemy will honour the principle that was dear to the Church of the first millennium: “quod omnes tangit ab omnibus tractari debet”. What affects all should be discussed by all”.[v] It won’t. It is deliberately designed not to. Francis claims it is designed to avoid a kind of parliamentarism of the faithful. In reality it merely continues an exclusively episcopal parliamentarism. Fortunately for the laity the Synod office in Rome has said that submissions from individuals or groups of faithful will be welcome outside of the episcopal led synodal process. Notionally then this lay-led synod has the opportunity and importantly the right in Church law to directly send in its own report which could inform the eventual discussion in Rome. However the principles on which this Root and Branch synod are based pose a real challenge to the magisterium and the Rome Synod simply by virtue of insisting on an open agenda, freedom of speech and co-equal citizenship of all Church members. These are the very things that got the German Synodal into trouble and their story is as instructive as it is discouraging.
The German Church’s national synodal journey was begun in good faith in 2019 in response to Pope Francis’ rousing call for a new and meaningful synodality. It also began in direct response to the demands for Church reform from a body of faithful deeply demoralised by serial sex abuse scandals, episcopal mismanagement and a raft of other things clamouring for frank internal discussion with the sacred pastors for the faithful were tired of the futility of talking among themselves. Many saw Pope Francis call to a new inclusive free-speech synodality as a sign of the Holy Spirit at work. There can be no doubt that the General Secretary to the Synod of Bishops Cardinal Grech and Pope Francis raised reasonable expectations and hopes of such a radical form of synodality in stirring and sweeping claims. Cardinal Grech claimed: “Pope Francis has inaugurated a new style of synods marked by a real freedom of speech” [vi] and Pope Francis asserted that his Synods would always obey that principle so dear to the Church of the first millennium: “quod omnes tangit ab omnibus tractari debet”. What affects all should be discussed by all”.[vii]
On the face of it then nothing could have been closer to Francis’ vision of his new form of synodality than the synodal process initiated in Germany. It was a collaboration between the German Bishops’ Conference and the laity-led Central Committee of German Catholics (ZdK). They agreed on equality of voting between the clergy, laity and bishops and discussion of many contentious matters including sexual morality and women in Church ministries. It was and remains a model of free speech, co-responsibility and discussion of what affects all by all. Yet within weeks the German Synod had run into serious trouble with the Holy See. The progressive papal messages which the German Synod had legitimately taken at face value were subsequently contradicted by Pope Francis himself in another of his classic exasperating u-turns.
Pope Francis responded to the German Synodal process with alarm almost immediately in June 2019[viii]. He warned against what he termed “a false synodality” that wanted “to tidy up the Church and conform it to contemporary logic”. He advised that the agenda of the German synod should switch to discussing evangelism and should not discuss or make decisions on matters which were the subject of teachings for the universal Church. The German Synod decided against a discussion on evangelism and continued on as planned. Cardinal Ouellet, the head of the Vatican Congregation for Bishops then wrote to the German bishops in sterner legalistic terms telling them their synod was “not ecclesiologically valid”, that in canon law it was not a synod at all but a “particular council” and as such needed papal approval and terms of reference set by the Pope neither of which it had.
Next, in March 2021, draft German proposals on ideas for an inclusive welcoming Church which would allow blessings for Catholic same sex civilly married couples were pre-emptively dismissed by the Congregation for the Doctrine of the Faith with Papal approval. The congregation went on to say such blessings were banned because gay Catholics in civil marriages are incapable of either receiving or expressing God’s grace! That happened in the very same St Patrick’s week that Irish clergy were busy blessing pot plants of shamrock. It got worse.
For the avoidance of the very doubt he himself had created, Pope Francis, in his recent book “Let us Dream” firmly rowed back on any prospect of a ground-up progressive model of synodality saying: “In speaking of synodality, it’s important not to confuse Catholic doctrine and tradition with the Church’s norms and practices. What is under discussion at synodal gatherings are not traditional truths of Christian doctrine. The Synod is concerned mainly with how teaching can be lived and applied in the changing contexts of our time.” Synods therefore according to Pope Francis are therefore not places for robust open debate with freedom of speech on contentious magisterial teaching but rather are protected zones for those very teachings where we are supposed to confine discussion to how they can be successfully applied in our contemporary context. Pointless does not even get close!
It is difficult to see how this honours the principle – nothing about us without us – as Francis claims. It is equally difficult to see how this model of gagged synodality will deliver an ecclesial spring. More likely it will simply prolong the ecclesial winter and ice over the green shoots of hope. Current Church law puts a padlock on our intellectual human rights which Newman’s educated laity now seeks to unlock in order to facilitate the mature, fearless open debate among equals that alone can bring make the Church a credible twenty-first century guide to evangelism for Christ and to salvation. Removal of that padlock is a task for Pope Francis as supreme legislator and it is key to his Synod on Synodality having any chance of success. Yet in the literally hundreds of thousands of words he has written and said, including about human rights, your human rights and mine as Church members have not featured at all. It is time they did. As he said himself in “Fratelli Tutti”, “We say one thing with words but our actions and reality tell another story.”[ix]
While many leave the Church others hang on in hope of reform believing that despite its often appalling history it can be the humble, believable salvific service to the world Christ intended but only when it is finally free of the structural dysfunction which has created the magisterial mess Pope Francis does not want us to tidy up. And what a mess it is.
Many of us are in growing despair of our Church’s inability to turn a critical spotlight on itself while shining a critical spotlight on the world at large, its indulgence in historical amnesia, its default to piouciouness and hagiography, its capacity for dissembling, for smugly blaming everything but itself for internal problems, its controlling clericalism, its cavalier misogyny, its evil homophobia, its institutional and clerical child sexual and physical abuse, its episcopal coverups that protected criminals and ignored victims, its lack of financial transparency and accountability, its over-burdening of ageing, tired and discouraged clergy rather than face internal responsibility for the collapse in vocations, its refusal to let those most affected by contested teachings like “Humanae Vitae” into any internal debate, its failure to honour obligations under human rights treaties, its hypocrisy in preaching justice, equality, inclusion, diversity and due process to the world at large while failing to practice them internally, its relentless external advocacy of the right to life of the unborn while hypocritically ignoring the fact that the Church whose primary mission is salvation, itself teaches that it cannot guarantee a right to eternal life for the eighty million babies annually who die unbaptised through natural miscarriage, abortion and still-birth, its external championing of environmental responsibility while failing to mitigate the environmental damage, and the social and financial waste caused by the enormous stockpiled portfolio of unsustainable underused and unused property owned by the Church, the biggest non governmental owner of private property in the world, need I mention the glacial pace of ecumenism, inter-communion, sacramental access for the divorced and remarried…. The list gets longer… and with it the magisterial Church grows more disconnected from Christ as the shallow well of decision making ability it draws from dries up.
We would like to freely discuss these things and contribute to their resolution in an official standing inclusive forum within the Church for the good of the Church. No such forum exists which is why Root and Branch created this one. Pope Francis’ notion of synodality which once seemed to have captured the zeitgeist favouring an all-inclusive Church debating structure now seems bent on preventing it at worst, micro-managing it into irrelevance at best.
Unless and until the magisterial Church acknowledges the full equality of all members as Church citizens, unless there is an acknowledgment of members inalienable rights to freedom of speech, expression, opinion, conscience, belief, religion and right to change religion then all official Church Synods, whether diocesan, national, or Synods of Bishops will be as anodyne and embarrassingly ineffectual as every Synod of Bishops has been since its inception in 1965. That includes Francis four Synods which though extravagantly hyped, despite their large clerical carbon footprint, have all been expensive, protracted and inconclusive anti-climaxes testifying only to the hopeless inadequacy of the Church’s official synodal model, in fact its hopelessly out-of-date model of powerless membership and all-powerful magisterium.
The Church will continue to haemorrhage members and experience a lessening of both external and internal impact unless it shifts from a culture of imposed obligation to a culture of invitation, from a catechesis of imposed obligation to a catechesis of open invitation. In such an open culture the divine baptismal graces can flow liberally. In our magisterial control culture they are blockaded and we are spiritually infantilised while the magisterium tells us they have all the answers and we have no right to ask the questions.
Yet more in hope than expectation we meet in a good faith response to Pope Francis call for a more synodal Church because somehow we still believe in miracles. Canon 212§3 of the 1983 Code of Canon Law says that:
Christ’s faithful “have the right, indeed at times the duty, in keeping with their knowledge, competence and position to manifest to the sacred Pastors their views on matters which concern the good of the Church. They have the right also to make their view’s known to others of Christ’s faithful”.
So far so encouraging of the phenomenal resource that is the insight and wisdom of the faithful. But this canon is no freedom charter for just listen to how our right to express our views is constrained. We “must always respect the integrity of faith and morals, [and] show due reverence to the (sacred) pastors”. We “are bound to show Christian obedience to what the sacred Pastors who represent Christ, declare as teachers of the faith and prescribe as rulers of the Church.”[x] And we are bound to preserve our “communion with the Church at all times, even in [our] external actions.”[xi]
It is long past time that these canons were revised to acknowledge the transcendent overarching inalienability of the human rights and fundamental intellectual freedoms of all the faithful, above all their right to be involved in making the decisions which affect them.
Canon law also needs to address the rights of children as set out in the UN Convention on the Rights of the Child 1989 to which Holy See is a very neglectful State Party. The Convention provides that while parents have of course the right to baptise their infants and raise them in the faith they must acknowledge and respect the child’s right to make up its own mind about membership, doctrine and teachings when capable of doing so. The Holy See is obliged to honour the Convention’s principles in its laws and practices but does not currently do so. Were it to do so we could quickly have a healthy church of convinced volunteers held not by imposed obligations but by a freely offered real personal passion for the Gospel and the power of God’s love. Such a healthy Church has the chance of being much more evangelically convincing about Christ and ridding itself of the accumulated vanities of history which have ossified faith into ersatz duty and obligation. Such a Church could usefully discuss evangelism but not this Church, not yet.
We should be in no doubt that this is a defining moment in the contemporary Church. Pope Francis’ hasty populist push for an ill-defined synodality was at least a recognition that something had to give. This Root and Branch Lay led Synod with its clarity and coherence about what it wants from synodality and what it wants for the Church of the future has the chance to play a unique and historic role in shifting the internal Church roadblocks. But there is a shocking reality here which is that despite a contrary narrative, lay participation has been consistently frozen out and episcopal power even more strongly consolidated during the 20th and 21st centuries, the very centuries that have seen the emergence of a massified educated laity and which were supposed to see a wide conciliar embrace of the lay charisms.
The 1917 Code of Canon law had provided that there should be a provincial council with lay participation in each ecclesiastical province every twenty years (can. 283). That never happened since it relied on episcopal initiation and so with rare exceptions diocesan synods and national/regional councils fell out of fashion. Thus that limited but at least place-keeping form of lay participation was mostly lost to the Church. The post Vatican Council years which it was hoped would lead to greater scope for the lay charisms instead saw the consolidation and augmentation of the power of new-fangled Episcopal Conferences made up entirely of bishops, with no clear role for the laity apart from limited service on optional committees well away from matters of teaching and doctrine. The creation in 1965 of the Synod of Bishops, a new advisory body to the Pope also made no formal provision for lay representation.
Thomas Reese, remarks that Synods of Bishops: “were often an embarrassment…. The entire process was carefully stage-managed by Vatican officials, and bishops who ignored the playbook…got slapped down.”[xii]
Francis was himself critical of the Synod of Bishops saying shortly after his election: “We must give them a less rigid form. I do not want token consultations, but real consultations”.[xiii]
There is an old Irish joke told about foreign tourists who are lost on a narrow winding country road and stop to ask a local farmer for directions to the town which is their destination. He answers – “well if that is where you are going, I wouldn’t start from here if I were you!” It is a near to exact description of Pope Francis’ disorganised unmapped journey towards a Synodal Church. Yet it is where we are. On present form unless something miraculous interrupts the current Francis trajectory our destination will be a dead end called “bitter disappointment”. But this synod could well be that miracle.
Lay-led synodal processes[xiv] like this can showcase to the Church in general and the magisterium in particular what it is to be an equal citizen of the Church, how to respectfully embrace freedom of speech, how to listen to, how to hear and how to trust the voices of lay men and women who care about the Church and who are open to guidance from the Holy Spirit. Their fresh wisdom may yet provide answers to problems a decomposing hierarchical infrastructure cannot face.
The only way this Synod is able to offer real freedom of speech and an open agenda dedicated to the best practice of the great commandment to love one another, is by ignoring the constraints imposed by the magisterium and insisting our human rights are not trumped by Church law but are in fact violated by it.
By drawing that reality to the attention of the forthcoming Synod of Bishops, there is even at this last minute some timely hope of vindicating Cardinal Grech’s claim that Pope Francis’ synods have a new style that is “marked by a real freedom of speech”. Pope Francis has warned of a false synodality that wants to tidy up the Church. If ever an institution needed to be tidied up Holy Father it is our Church for we face an unholy mess created by the systemic dishonourable abuse of grandiose clerical power. It has flattened the faithful. We should be glad of the miracle unfolding here that there are people still willing to stand up and help tidy up that magisterial mess not with unchristian episcopal cover-ups but with Christian candour. Our kind of synodality can lead to a new kind of communion, finally worthy of Christ, who is after all the very author of our inalienable human rights and fundamental freedoms, who stands four-square with us as we use the voice he gave us and the freedom he gave us to demand of the magisterium that it fully honours them and Him as we do here at this Synod in His Holy name.
[i] Cf. Address of Cardinal Grech to the Irish Catholic Bishops’ Conference, 4 March 2021.
[ii]Cf. International Theological Commission, Synodality in the Life and Mission of the Church, 6, https://www.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_cti_20180302
_sinodalita_en.html
[iii] Pope Francis, address on the occasion of the 50th anniversary of the Synod of Bishops, 17 October 2015, https://www.vatican.va/content/francesco/en/speeches/2015/october/documents/papa-francesco_20151017_50-anniversario-sinodo.html
[iv] International Theological Commission, Synodality in the Life and Mission of the Church, 5 https://www.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_cti_20180302_sinodalita_en.html
[v] Pope Francis – Austen Ivereigh, Let us Dream, The path to a better future, 84.
[vi] Cardinal Mario Grech, Address to the Irish bishops on Synodality, 3rd February 2021, https://www.catholicbishops.ie/2021/03/04/address-of-cardinal-mario-grech-to-the-bishops-of-ireland-on-synodality-2/
[vii] Pope Francis – Austen Ivereigh, Let us Dream, The path to a better future, 84.
[viii] Pope Francis, Lettera del Santo Padre Francesco al popolo di Dio che è in cammino in Germania, 29 June 2019.
[ix] Pope Francis, Fratelli Tutti 22.
[x] Can. 212§1
[xi] Can. 209§1
[xii] T. Reese, “Three ways to improve the Synod of Bishops”, National Catholic Reporter, 12 November 2015, https://www.ncronline.org/blogs/faith-and-justice/three-ways-improve-synod-bishops
[xiii] Pope Francis, interview in America Magazine, September 2013. https://www.americamagazine.org/pope-francis-interview.
[xiv] For example The Root and Branch Synod Bristol, UK, 5-12 September 2021.
